News and Comment about the ACLU of Massachusetts and civil liberties issues

Monday, March 22, 2010

Sexting – and who decides what it means to be a girl in 2010 America?

ACLU of Massachusetts Executive Director Carol Rose posted the following on her new Boston.com blog, On Liberty.

Sexting -- the latest twist on technology-meets-teenagers – often involves kids sharing revealing pictures of themselves or others by cell phone or online posting. Such youthful idiocy, while concerning itself, is even more dangerous because it subjects teens to criminal penalties for child pornography and a potential lifetime listing on a sex offender registry.

In Massachusetts, cases of sexting have hit the wires in Belmont, Newton, Falmouth, Billerica, and undoubtedly is coming to your town soon enough. But the law hasn’t caught up with the technology. Instead, prosecutors are armed only with the blunt hammer of child pornography statutes, under which sharing such photos constitutes a felony crime and a sexual offense.

Given that nearly 20 percent of teenagers are reported to have sent or posted nude or seminude photos of themselves online or via phone, parents are understandably concerned that their teens may be victimized when revealing photographs passed around.

But parents should be equally concerned that the current law gives local prosecutors tremendous power to lock up their kids -- both the victims and perpetrators -- and to tag them as sex offenders for life.

One of the creepiest examples of prosecutorial abuse of power around sexting involved a Pennsylvania district attorney, George Skumanick, Jr., who threatened to bring criminal charges against two girls age 12 who were photographed wearing bras by a friend on her digital camera and a third girl photographed as she came out of the shower with a towel wrapped around her upper body, but her breasts exposed. Neither of the pictures showed sexual activity or genitalia. Nonetheless, when school officials learned that the photos were circulating on several students’ cell phones, Skumanick threatened to prosecute the girls in the picture – but not the boys who shared the photos – unless the girls agreed to a “re-education” program that Skumanick himself designed, with topics such as “what it means to be a girl in today’s society.”

If they refused, Skumanick threatened to charge the girls with felony child pornography, a charge that carries up to 10 years in prison. Fortunately, the girls’ parents contacted the American Civil Liberties Union to defend the rights of their daughters, and the Third Circuit Court of Appeals last week upheld the rights of the girls and their families.

Amazingly, the attorney who argued the case for the prosecution explained that they decided to prosecute the girls in the photos but not the boys who were circulating the pictures because “high school boys did as high school boys will do, and traded the photos among themselves." Skumanick himself has been quoted saying that he has the authority to prosecute a girl for being photographed in a bikini on a beach if the photo is “provocative.”

Are these the kind of people we want deciding “what it means to be a girl in today’s society”?

Kids should be taught that sending or posting compromising photographs of themselves is dangerous and can have terrible consequences for their future. But that’s a lesson that should be taught by parents and teachers – not by the heavy-hand of criminal prosecution.